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Third Bard Avaulata Bellwether Set for Trial, With More Cases On The Way

illiegal-send-text-to-a-driver_61336417-300x200The tens of thousands transvaginal mesh cases have come to be one of the longer-running mass tort litigations in the history of such suits. These cases are more than 50,000 in number, and span the United States court system. Common to all of these cases are the complaints by affected plaintiffs of complications following the use of transvaginal mesh products to treat pelvic organ prolapse (when organs drop against the wall of the vagina) or female stress urinary incontinence. Among the various complications that have been complained of include pain during sex, erosion of vaginal tissue, infection, and even death.

In one of the most massive pre-trial consolidations of mass tort litigations in U.S. federal court history, pre-trial proceedings in seven different multi-district transvaginal mesh litigations have been consolidated before Judge Joseph Goodwin in the Southern District of West Virginia. Judge Goodwin will be overseeing discovery in these proceedings in order to avoid duplicative discovery in the various MDLs, to avoid conflicting rulings from judges and generally to increase the overall efficiency of the process. Also pursuant to these goals, bellwether programs have been established where certain cases will proceed to trial earlier in order to determine various aspects of these cases, how they will proceed to trial, and perhaps even if they will proceed to trial at all.

Several Bard Avaulta transvaginal mesh lawsuits are among these bellwether trials, and three have been set for trial dates in federal court beginning in July 2013. One has ended in a $2 million damage award, including punitive damages intended to punish Bard Avaulta and deter future indiscretions, another has settled, and a third originally scheduled to begin in November 2013 has been delayed several times and will now commence on May 19, 2014.

Of course, the bellwethers are only just the beginning, and now Judge Goodwin has outlined a procedure for 200 cases to go through case-specific discovery no sooner than 2015. The parties have been instructed to select cases that will proceed to trial within this next batch of 200, and at that point the parties will spend the remainder of 2014 in discovery on those cases so that trial can commence in 2015 after dispositive motions have been filed. Selection of these cases will be informed by considerations somewhat different from those of the bellwether cases, as the latter are perhaps more instructive in determining the outcome of later cases. This next batch of 200 will have a much more impactful financial outcome as opposed to a legal one, and will force the litigants to address slightly different concerns in selecting the cases that will next proceed to trial.

That said, many of these cases will find themselves back in U.S. District Courts throughout the country if and when Judge Goodwin determines that they be remanded for purposes of proper venue. At that point, the specific factual issues in each of these cases will be addressed before a fact-finder, unless the cases find their way to settlement before that time.

Ultimately, these TVM cases will not be disposed of for years to come, but with the three Bard Avaulta cases nearing resolution, they are certainly well on their way. Whether the third Bard Avaulta bellwether litigation will have substantial legal implications for the later cases to come remains to be seen.

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